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The party claiming the privilege bears the burden of proving that the communications are protected. As oft-cited definitions of the privilege make clear, only communications that seek "legal advice" from a professional legal adviser in his capacity as such are protected. Or, the privilege applies only if the person to whom the communication is made is a member of the bar of a court who in connection with the communication is acting as a lawyer and the communication is made for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding.
Appellee independent counsel filed a motion to compel appellant President of the United States' (President) government attorney to give testimony to a federal grand jury. The United States District Court for the District of Columbia granted the independent counsel's motion with respect to the executive privilege, the government attorney-client privilege, and personal attorney-client privilege. The President appealed the last two rulings only.
May an attorney in the Office of the President, having been called before a federal grand jury, refuse, on the basis of a government attorney-client privilege, to answer questions about possible criminal conduct by government officials and others?
The court recognized that that privilege existed but that it could not have been asserted when the President communicated with the government attorney for advice on political, strategic, or policy issues. The court further reasoned that each officer of the executive branch was bound by U.S. Const. art. VI, cl. 3, and 28 U.S.C.S. § 544, to uphold the public trust and that strongly militated against allowing invocation of the privilege to prevent disclose of the possible commission of criminal offenses within the government. Because of the President's official duties there was reasonable necessity under the intermediary doctrine for him to use the government attorney as an intermediary with private counsel, but not when the government attorney contributed legal advice to the discussions between the President and private counsel. Finally, the common interest doctrine between the President in his official capacity and in his personal capacity also did not apply to prevent the government attorney from testifying before the grand jury regarding evidence obtained in his official role.